In a unanimous decision issued today, the Supreme Court ruled that police cannot search the cell phones of arrested individuals without a warrant. In reaching its decision, the Court recognized that there is an immense amount of personal information on smart phones and held that access to that information would constitute a significant invasion of individual privacy. With the relatively recent invention of cell phones and the sudden pervasiveness of smart phones in the United States, the Court was forced to grapple with the application of century old legal principles to the practical realties of modern day technology. As the Court stated,

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

The Court’s decision stems from two California cases in which the police searched, without a warrant, suspects’ cell phones after arrest and used the call records, messages, videos, and pictures contained on the phones to secure convictions against them.

The Court reached its decision by balancing the government’s interest in officer safety and evidence preservation against the privacy interests of arrested individuals. The Court’s analysis demonstrates an understanding of both the technology involved and practical realities of smart phone use.

First, it is readily apparent that, except in fanciful 24like situations, the data contained in cell phones does not pose a safety risk to police. Moreover, the data on cell phones is not likely to be lost during the time it usually takes the police to obtain a warrant. The Court did, however, address arguments that the data might be lost through remote wiping or data encryption. While there is “little reason to believe that either problem is prevalent,” the Court noted that encrypted phones are usually already locked at the time of arrest, and concerns over remote wiping can be alleviated by disconnecting the phone from the network either though the phone’s settings or the use of bags that block radio waves (commonly referred to as Faraday bags).

Second, the Court, arguably for the first time, held that people have a strong privacy interest in the contents of their cell phones. The Court rejected the argument that searching data stored on a cell phone is “materially indistinguishable from searches of [the] sorts of physical items” usually present on a person, comparing the argument to “saying a ride on horseback is materially indistinguishable from a flight to the moon.” The Court noted that smart phones often contain all of a person’s electronic correspondence going back months or years; photographs and videos labeled with dates, locations, and descriptions; internet search and browsing history; purchase history; and historical GPS coordinates. In addition to this stored information, the Court recognized smart phones provide access to information stored in the cloud: “[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.” It is, of course, settled that the government cannot search someone’s house without a warrant, and to the Supreme Court, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”

The Court’s decision today will likely have implications outside of the context of searches incident to arrest. The right to privacy over electronic information often arises in data breach cases, and, as discussed in the Trademark and Copyright Law blog, today’s decision could impact challenges to the NSA’s bulk collection of metadata on telephone calls within the United States.

- See more at: http://www.securityprivacyandthelaw.com/#sthash.nCMP4iPw.dpuf

In a unanimous decision issued today, the Supreme Court ruled that police cannot search the cell phones of arrested individuals without a warrant. In reaching its decision, the Court recognized that there is an immense amount of personal information on smart phones and held that access to that information would constitute a significant invasion of individual privacy. With the relatively recent invention of cell phones and the sudden pervasiveness of smart phones in the United States, the Court was forced to grapple with the application of century old legal principles to the practical realties of modern day technology. As the Court stated,

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

The Court’s decision stems from two California cases in which the police searched, without a warrant, suspects’ cell phones after arrest and used the call records, messages, videos, and pictures contained on the phones to secure convictions against them.

The Court reached its decision by balancing the government’s interest in officer safety and evidence preservation against the privacy interests of arrested individuals. The Court’s analysis demonstrates an understanding of both the technology involved and practical realities of smart phone use.

First, it is readily apparent that, except in fanciful 24like situations, the data contained in cell phones does not pose a safety risk to police. Moreover, the data on cell phones is not likely to be lost during the time it usually takes the police to obtain a warrant. The Court did, however, address arguments that the data might be lost through remote wiping or data encryption. While there is “little reason to believe that either problem is prevalent,” the Court noted that encrypted phones are usually already locked at the time of arrest, and concerns over remote wiping can be alleviated by disconnecting the phone from the network either though the phone’s settings or the use of bags that block radio waves (commonly referred to as Faraday bags).

Second, the Court, arguably for the first time, held that people have a strong privacy interest in the contents of their cell phones. The Court rejected the argument that searching data stored on a cell phone is “materially indistinguishable from searches of [the] sorts of physical items” usually present on a person, comparing the argument to “saying a ride on horseback is materially indistinguishable from a flight to the moon.” The Court noted that smart phones often contain all of a person’s electronic correspondence going back months or years; photographs and videos labeled with dates, locations, and descriptions; internet search and browsing history; purchase history; and historical GPS coordinates. In addition to this stored information, the Court recognized smart phones provide access to information stored in the cloud: “[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.” It is, of course, settled that the government cannot search someone’s house without a warrant, and to the Supreme Court, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”

The Court’s decision today will likely have implications outside of the context of searches incident to arrest. The right to privacy over electronic information often arises in data breach cases, and, as discussed in the Trademark and Copyright Law blog, today’s decision could impact challenges to the NSA’s bulk collection of metadata on telephone calls within the United States.

- See more at: http://www.securityprivacyandthelaw.com/#sthash.nCMP4iPw.dpuf

In a unanimous decision issued last week, the Supreme Court ruled that police cannot search the cell phones of arrested individuals without a warrant. In reaching its decision, the Court recognized that there is an immense amount of personal information on smart phones and held that access to that information would constitute a significant invasion of individual privacy. With the relatively recent invention of cell phones and the sudden pervasiveness of smart phones in the United States, the Court was forced to grapple with the application of century old legal principles to the practical realties of modern day technology. As the Court stated,

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

The Court’s decision stems from two California cases in which the police searched, without a warrant, suspects’ cell phones after arrest and used the call records, messages, videos, and pictures contained on the phones to secure convictions against them.

The Court reached its decision by balancing the government’s interest in officer safety and evidence preservation against the privacy interests of arrested individuals. The Court’s analysis demonstrates an understanding of both the technology involved and practical realities of smart phone use.

First, it is readily apparent that, except in fanciful 24like situations, the data contained in cell phones does not pose a safety risk to police. Moreover, the data on cell phones is not likely to be lost during the time it usually takes the police to obtain a warrant. The Court did, however, address arguments that the data might be lost through remote wiping or data encryption. While there is “little reason to believe that either problem is prevalent,” the Court noted that encrypted phones are usually already locked at the time of arrest, and concerns over remote wiping can be alleviated by disconnecting the phone from the network either though the phone’s settings or the use of bags that block radio waves (commonly referred to as Faraday bags).

Second, the Court, arguably for the first time, held that people have a strong privacy interest in the contents of their cell phones. The Court rejected the argument that searching data stored on a cell phone is “materially indistinguishable from searches of [the] sorts of physical items” usually present on a person, comparing the argument to “saying a ride on horseback is materially indistinguishable from a flight to the moon.” The Court noted that smart phones often contain all of a person’s electronic correspondence going back months or years; photographs and videos labeled with dates, locations, and descriptions; internet search and browsing history; purchase history; and historical GPS coordinates. In addition to this stored information, the Court recognized smart phones provide access to information stored in the cloud: “[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.” It is, of course, settled that the government cannot search someone’s house without a warrant, and to the Supreme Court, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”

The Court’s decision will likely have implications outside of the context of searches incident to arrest. The right to privacy over electronic information often arises in data breach cases, and, as discussed in the Trademark and Copyright Law blog, today’s decision could impact challenges to the NSA’s bulk collection of metadata on telephone calls within the United States.

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